EU Joins In The Bullying Of South Africa For Daring To Adopt US-Style Fair Use Principles

from the copyright-maximalists-made-me-do-it dept

As part of its copyright reform, South Africa plans to bring in a fair use right. Despite the fact its proposal is closely modeled on fair use in American law, the copyright industry has persuaded the US government to threaten to kill an important free trade deal with South Africa if the latter dares to follow America's example. If you thought only US copyright companies were capable of this stunningly selfish behavior, think again. It seems that the European copyright industry has been having words with the EU, which has now sent a politely threatening letter to the South African government about its copyright reform (pdf). After the usual fake compliments, it gets down to business in the following passage:

we once again regret the foreseen introduction in the South African copyright regime of provisions relating to fair use in combination with an extensive list of broadly defined and non-compensated exceptions. This is bound to result in a significant degree of legal uncertainty with negative effects on the South African creative community at large as well as on foreign investments, including the European ones.

Invoking "uncertainty" is a standard ploy, already used back in 2011 when the UK was considering bringing in fair use. It is manifestly ridiculous, since the US provides a shining example of how fair use does not engender any terrible uncertainty. America also offers a rich set of legal and commercial experiences others can draw on when they implement a fair use right. Here, "uncertainty" is just a coded way of threatening to withdraw investment in South Africa. It's an empty threat, though, since US history shows that fair use encourages innovation, notably in the digital sector, for which investors have a huge appetite. The EU letter goes on to tip its hand about who is behind this whining:

The European right holders continue expressing their concerns to us in this regard as they have done during the consultation period. All creative sectors in the EU, film industry, music and publishing industry have pointed to the possibility of revisiting their investment plans in South Africa due to these concerns. Other sectors, such as those which are high- technology based, could also suffer as a result of legal uncertainty created by the new regime.

That last sentence is revealing. If the digital sector had actually expressed its fears about "uncertainty", you can bet that the EU would have mentioned it as a serious issue. Since it is framed as "could also suffer as a result", we know that this is just the EU's hypothetical. It is an attempt to get around the awkward fact that high-tech companies love fair use in general, since it gives them far more scope to try out exciting new ideas. It's sad to see the EU slavishly doing the bidding of copyright's digital dinosaurs, and joining with the US in the unedifying spectacle of bullying a small nation trying to modernize its laws.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, eu, fair use, innovation, south africa, uncertainty


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. identicon
    Anonymous Coward, 30 Apr 2020 @ 7:12am

    The thing about fair use is it does not stop the copyright-owning rent-seekers from seeking rent, nor from suing anyone for what is believed to be infringement, forcing most people to settle because the cost of defending against copyright litigation is sky-high. So there is really no uncertainty there.

    All it does is gives sued users a possible defense, more like lottery ticket redeemable in court, and only if they are sued. Very few people take those tickets all the way to redemption.

    Well, there's that, and... in common-law regions, fair use creates the possibility of a future judicial precedent that may or may not be in the industry's favor. The industry very much prefers that bought-and-paid-for legislators, not judges & juries, decide where to draw the line between infringement and reasonable uses that don't require a license.


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.